Criminal Justice (Scotland) Bill [AS INTRODUCED]

Transcription

1 Criminal Justice (Scotland) Bill [AS INTRODUCED] CONTENTS Section PART 1 ARREST AND CUSTODY CHAPTER 1 ARREST BY POLICE 1 Power of a constable 2 Exercise of the power Arrest without warrant Procedure following arrest 3 Information to be given on arrest 4 Arrested person to be taken to police station Information to be given at police station 6 Information to be recorded by police CHAPTER 2 CUSTODY: PERSON NOT OFFICIALLY ACCUSED Keeping person in custody 7 Authorisation for keeping in custody 8 Information to be given on authorisation 9 Review after 6 hours Test for sections 7 and hour limit: general rule hour limit: previous period 13 Medical treatment Investigative liberation 14 Release on conditions Conditions ceasing to apply 16 Modification or removal of conditions 17 Review of conditions SP Bill 3 Session 4 (13)

2 ii Criminal Justice (Scotland) Bill CHAPTER 3 CUSTODY: PERSON OFFICIALLY ACCUSED Person to be brought before court 18 Person to be brought before court 19 Liberation by police Release on undertaking 21 Modification of undertaking 22 Review of undertaking Police liberation CHAPTER 4 POLICE INTERVIEW Rights of suspects 23 Information to be given before interview 24 Right to have solicitor present Consent to interview without solicitor Person not officially accused 26 Questioning following arrest Person officially accused 27 Authorisation for questioning 28 Authorisation: further provision 29 Arrest to facilitate questioning CHAPTER RIGHTS OF SUSPECTS IN POLICE CUSTODY Intimation and access to another person Right to have intimation sent to other person 31 Right to have intimation sent: under 18s 32 Right of under 18s to have access to other person 33 Support for vulnerable persons 34 Power to make further provision Vulnerable persons Intimation and access to a solicitor 3 Right to have intimation sent to solicitor 36 Right to consultation with solicitor CHAPTER 6 POLICE POWERS AND DUTIES 37 Use of reasonable force 38 Common law power of entry Powers of police

5 Criminal Justice (Scotland) Bill v 87 Establishment and functions CHAPTER 2 POLICE NEGOTIATING BOARD FOR SCOTLAND PART 7 FINAL PROVISIONS 88 Ancillary regulations 89 Meaning of the 199 Act Ancillary and definition 90 Commencement 91 Short title Commencement and short title Schedule 1 Modifications in connection with Part 1 Part 1 Provisions as to arrest Part 2 Further modifications Schedule 2 Modifications in connection with Part 2 Part 1 Transitional provisions Part 2 Consequential provisions Schedule 3 Police Negotiating Board for Scotland

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7 Criminal Justice (Scotland) Bill 1 Part 1 Arrest and custody Chapter 1 Arrest by police ACCOMPANYING DOCUMENTS Explanatory Notes, together with other accompanying documents, are printed separately as SP Bill 3-EN. A Policy Memorandum is printed separately as SP Bill 3-PM. Criminal Justice (Scotland) Bill [AS INTRODUCED] An Act of the Scottish Parliament to make provision about criminal justice including as to police powers and rights of suspects and as to criminal evidence, procedure and sentencing; to establish the Police Negotiating Board for Scotland; and for connected purposes. PART 1 ARREST AND CUSTODY CHAPTER 1 ARREST BY POLICE Arrest without warrant 1 Power of a constable (1) A constable may arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence. (2) In relation to an offence not punishable by imprisonment, a constable may arrest a person under subsection (1) only if the constable is satisfied that it would not be in the interests of justice to delay the arrest in order to seek a warrant for the person s arrest. (3) Without prejudice to the generality of subsection (2), it would not be in the interests of justice to delay an arrest in order to seek a warrant if the constable reasonably believes that unless the person is arrested without delay the person will (a) seek to avoid arrest, (b) continue committing the offence, (c) interfere with witnesses or evidence, or otherwise obstruct the course of justice. 2 Exercise of the power (1) A person may be arrested under section 1 more than once in respect of the same offence. (2) A person may not be arrested under section 1 in respect of an offence if the person has been officially accused of committing the offence or an offence arising from the same circumstances as the offence. SP Bill 3 Session 4 (13)

8 2 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 1 Arrest by police Procedure following arrest 3 Information to be given on arrest When a constable arrests a person (or as soon afterwards as is reasonably practicable), a constable must inform the person (a) that the person is under arrest, (b) of the general nature of the offence in respect of which the person is arrested, (c) of the reason for the arrest, (d) that the person is under no obligation to say anything, other than to give the information specified in section 26(3). 4 Arrested person to be taken to police station Where a person is arrested by a constable outwith a police station, a constable must take the person as quickly as is reasonably practicable to a police station. Information to be given at police station (1) Subsections (2) and (3) apply when (a) a person is in police custody having been arrested at a police station, or (b) a person is in police custody and has been taken to a police station in accordance with section 4. (2) The person must be informed as soon as reasonably practicable (a) that the person is under no obligation to say anything, other than to give the information specified in section 26(3), (b) of any right the person has to have intimation sent and to have access to certain persons under (i) section, (ii) section 32, (iii) section 3, (iv) section 36. (3) The person must be provided as soon as reasonably practicable with such information (verbally or in writing) as is necessary to satisfy the requirements of Articles 3 and 4 of Directive 12/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings. 3 6 Information to be recorded by police (1) There must be recorded in relation to any arrest (a) the time and place of arrest, (b) the general nature of the offence in respect of which the person is arrested, (c) if the person is taken from one place to another while in police custody (including to a police station in accordance with section 4)

9 Criminal Justice (Scotland) Bill 3 Part 1 Arrest and custody Chapter 1 Arrest by police 3 (i) the place from which, and time at which, the person is taken, and (ii) the place to which the person is taken and the time at which the person arrives there, (d) the time at which, and the identity of the constable by whom, the person is informed of the matters mentioned in section 3, (e) the time at which, and the identity of the person by whom, the person is (i) informed of the matters mentioned in subsection (2) of section, and (ii) provided with information in accordance with subsection (3) of that section, (f) the time at which the person requests that intimation be sent under (i) section, (ii) section 3, (g) the time at which intimation is sent under (i) section, (ii) section 33, (iii) section 3, (h) the time at which the person (i) is released from custody, or (ii) is taken from a police station or other place in order to be brought before a court or (as the case may be) appears before a court by means of a live television link. (2) Where a person is in police custody and not officially accused of committing an offence, there must be recorded the time, place and outcome of any decision under section 7. (3) Where a person is held in police custody by virtue of authorisation given under section 7 there must be recorded (a) the time at which the person is informed of the matters mentioned in section 8, (b) the time, place and outcome of any review under section 9, (c) the time at which any interview in the circumstances described in section 13(6) begins and the time at which it ends. (4) If a person is released from police custody on conditions under section 14, there must be recorded (a) details of the conditions imposed, and (b) the identity of the constable who imposed them. () If a person is charged with an offence by a constable while in police custody, there must be recorded the time at which the person is charged.

10 4 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 2 Custody: person not officially accused CHAPTER 2 CUSTODY: PERSON NOT OFFICIALLY ACCUSED Keeping person in custody 7 Authorisation for keeping in custody (1) Subsection (2) applies where (a) a person is in police custody having been arrested without a warrant, and (b) since being arrested, the person has not been charged with an offence by a constable. (2) Authorisation to keep the person in custody must be sought as soon as reasonably practicable after the person (a) is arrested at a police station, or (b) arrives at a police station, having been taken there in accordance with section 4. (3) Authorisation may be given only by a constable who has not been involved in the investigation in connection with which the person is in police custody. (4) Authorisation may be given only if that constable is satisfied that the test in section is met. () If authorisation is refused, the person may continue to be held in police custody only if a constable charges the person with an offence. 8 Information to be given on authorisation At the time when authorisation to keep a person in custody is given under section 7, the person must be informed of (a) the reason the person is being kept in custody, and (b) the 12 hour limit arising by virtue of section Review after 6 hours (1) Subsection (2) applies when a person (a) has been held in police custody for a continuous period of 6 hours, beginning with the time at which authorisation was given under section 7, and (b) during that time the person has not been charged with an offence by a constable. (2) As soon as reasonably practicable a constable must consider whether the test in section is met. (3) The constable mentioned in subsection (2) must be a constable who (a) is of the rank of inspector or above, and (b) has not been involved in the investigation in connection with which the person is in police custody. (4) If the constable is not satisfied that the test in section is met, the person may continue to be held in police custody only if a constable charges the person with an offence.

11 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 2 Custody: person not officially accused Test for sections 7 and 9 (1) For the purposes of sections 7(4) and 9(2), the test is that (a) there are reasonable grounds for suspecting that the person has committed an offence, and (b) keeping the person in custody is necessary and proportionate for the purposes of bringing the person before a court or otherwise dealing with the person in accordance with the law. (2) Without prejudice to the generality of subsection (1)(b), in considering what is necessary and proportionate for the purpose mentioned in that subsection regard may be had to (a) whether the person s presence is reasonably required to enable the offence to be investigated, (b) whether the person (if liberated) would be likely to interfere with witnesses or evidence, or otherwise obstruct the course of justice, (c) the nature and seriousness of the offence hour limit: general rule (1) Subsection (2) applies when a person (a) has been held in police custody for a continuous period of 12 hours, beginning with the time at which authorisation was given under section 7, and (b) during that time the person has not been charged with an offence by a constable. (2) The person may continue to be held in police custody only if a constable charges the person with an offence hour limit: previous period (1) Subsection (2) applies where (a) a person is being held in police custody by virtue of authorisation given under section 7, (b) authorisation has been given under that section to hold the person in police custody on a previous occasion, and (c) the offence in connection with which the authorisation mentioned in paragraph (a) has been given is the same offence or arises from the same circumstances as the offence in connection with which the authorisation mentioned in paragraph (b) was given. (2) The 12 hour period mentioned in section 11 is reduced by the length of the period during which the person was held in police custody by virtue of the authorisation mentioned in subsection (1)(b). (3) Subsections () and (6) of section 13 apply for the purpose of calculating the length of the period during which the person was held in police custody by virtue of the authorisation mentioned in subsection (1)(b).

12 6 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 2 Custody: person not officially accused 13 Medical treatment (1) Subsection (2) applies when (a) a person is in police custody having been arrested without a warrant, (b) since being arrested, the person has not been charged with an offence by a constable, and (c) the person is at a hospital for the purpose of receiving medical treatment. (2) If authorisation to keep the person in custody has not been given under section 7, that section has effect as if (a) each reference in subsection (2) of that section to a police station were a reference to the hospital, and (b) the words after the reference to a police station in paragraph (b) of that subsection were omitted. (3) Where authorisation is given under section 7 when a person is at a hospital, authorisation under that section need not be sought again if, while still in custody, the person is taken to a police station in accordance with section 4. (4) Subsections () and (6) apply for the purpose of calculating the 12 hours mentioned in section 11. () Except as provided for in subsection (6), no account is to be taken of any time during which a person is (a) at a hospital for the purpose of receiving medical treatment, or (b) being taken to a hospital for that purpose. (6) Account is to be taken of any time during which a person is both (a) at a hospital, or being taken to one, and (b) being interviewed by a constable in relation to an offence which the constable has reasonable grounds to suspect the person of committing. Investigative liberation 3 14 Release on conditions (1) Subsection (2) applies where (a) a person is being held in police custody by virtue of authorisation given under section 7, (b) a constable has reasonable grounds for suspecting that the person has committed a relevant offence, and (c) the period of 28 days described in subsection (4) has not expired. (2) If releasing the person from custody, a constable may impose any condition that an appropriate constable considers necessary and proportionate for the purpose of ensuring the proper conduct of the investigation into a relevant offence. (3) A condition imposed under subsection (2) is a liberation condition for the purposes of Chapter 7. (4) For the purpose of subsection (1)(c)

13 Criminal Justice (Scotland) Bill 7 Part 1 Arrest and custody Chapter 2 Custody: person not officially accused (a) the period of 28 days is to be calculated by counting as a day of the period any day on which the person is subject to a condition imposed under subsection (2) in connection with a relevant offence, (b) a person is to be treated as being subject to a condition imposed under subsection (2) on a day if the person is subject to a condition under that subsection for any part of the day. () In subsection (2), an appropriate constable means a constable of the rank of inspector or above. (6) In this section, a relevant offence means (a) the offence in connection with which the authorisation under section 7 has been given, or (b) an offence arising from the same circumstances as that offence. Conditions ceasing to apply (1) A condition imposed on a person under section 14(2) ceases to apply (a) at the end of the last day of the 28 day period described in section 14(4), or (b) before then, if (i) the condition is removed by a notice under section 16, (ii) the person is arrested in connection with a relevant offence, (iii) the person is officially accused of committing a relevant offence, or (iv) the condition is removed by the sheriff under section 17. (2) In subsection (1), a relevant offence means (a) the offence in connection with which the condition was imposed, or (b) an offence arising from the same circumstances as that offence Modification or removal of conditions (1) A constable may by notice modify or remove a condition imposed under section 14(2). (2) A notice under subsection (1) (a) is to be given in writing to the person who is subject to the condition, (b) must specify the time from which the condition is modified or removed. (3) A constable of the rank of inspector or above must keep under review whether or not (a) there are reasonable grounds for suspecting that a person who is subject to a condition imposed under section 14(2) has committed a relevant offence, and (b) the condition imposed remains necessary and proportionate for the purpose of ensuring the proper conduct of the investigation into a relevant offence. (4) Where the constable referred to in subsection (3) is no longer satisfied as to the matter mentioned in paragraph (a) of that subsection, a constable must give notice to the person removing any condition imposed in connection with a relevant offence.

14 8 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 3 Custody: person officially accused () Where the constable referred to in subsection (3) is no longer satisfied as to the matter mentioned in paragraph (b) of that subsection, a constable must give notice to the person (a) modifying the condition in question, or (b) removing it. (6) Where a duty to give notice to a person arises under subsection (4) or (), the notice (a) is to be given in writing to the person as soon as practicable, and (b) must specify, as the time from which the condition is modified or removed, the time at which the duty to give the notice arose. (7) The modification or removal of a condition under subsection (1), (4) or () requires the authority of a constable of the rank of inspector or above. (8) In this section, a relevant offence means (a) the offence in connection with which the condition was imposed, or (b) an offence arising from the same circumstances as that offence. 17 Review of conditions (1) A person who is subject to a condition imposed under section 14(2) may apply to the sheriff to have the condition reviewed. (2) Before disposing of an application under this section, the sheriff must give the procurator fiscal an opportunity to make representations. (3) If the sheriff is not satisfied that the condition is necessary and proportionate for the purpose for which it was imposed, the sheriff may (a) remove the condition, or (b) impose an alternative condition that the sheriff considers to be necessary and proportionate for that purpose. (4) For the purposes of sections and 16, a condition imposed by the sheriff under subsection (3)(b) is to be regarded as having been imposed under section 14(2). CHAPTER 3 CUSTODY: PERSON OFFICIALLY ACCUSED Person to be brought before court 3 18 Person to be brought before court (1) Subsection (2) applies to a person when (a) the person is in police custody having been arrested under a warrant (other than a warrant granted under section 29(1)), or (b) the person (i) is in police custody having been arrested without a warrant, and (ii) since being arrested, the person has been charged with an offence by a constable.

15 Criminal Justice (Scotland) Bill 9 Part 1 Arrest and custody Chapter 3 Custody: person officially accused (2) Wherever practicable the person must be brought before a court competent to deal with the case not later than the end of the court s first sitting day after the day on which this subsection began to apply to the person (unless the person is released from custody under section 19). (3) A person is deemed to be brought before a court in accordance with subsection (2) if the person appears before it by means of a live television link. Police liberation 19 Liberation by police (1) Subsection (2) applies when (a) a person is in police custody having been arrested under a warrant (other than a warrant granted under section 29(1)), or (b) a person (i) (2) A constable may is in police custody having been arrested without a warrant, and (ii) since being arrested, the person has been charged with an offence by a constable. (a) if the person gives an undertaking in accordance with section, release the person from custody, (b) release the person from custody without such an undertaking, (c) refuse to release the person from custody. (3) A constable is not to be subject to any claim whatsoever by reason of having refused to release a person from custody under subsection (2)(c). 3 Release on undertaking (1) A person may be released from police custody on an undertaking given under section 19(2)(a) only if the person signs the undertaking. (2) The terms of an undertaking are that the person undertakes to (a) appear at a specified court at a specified time, and (b) comply with any conditions imposed under subsection (3). (3) The conditions which may be imposed under this subsection are (a) that the person does not commit an offence while subject to the undertaking, (b) any condition that an appropriate constable considers necessary and proportionate for the purpose of ensuring that the person does not obstruct the course of justice in relation to the offence in connection with which the person is in police custody. (4) Conditions which may be imposed under subsection (3)(b) include a curfew. () In subsection (3)(b), an appropriate constable means a constable of the rank of inspector or above. (6) The requirements imposed by an undertaking to attend at a court and comply with conditions are liberation conditions for the purposes of Chapter 7.

16 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 3 Custody: person officially accused 21 Modification of undertaking (1) The procurator fiscal may by notice modify the terms of an undertaking given under section 19(2)(a) by (a) changing the court specified as the court at which the person is to appear, (b) changing the time specified as the time at which the person is to appear at the court, (c) removing or altering any condition imposed under section (3). (2) A condition may not be altered under subsection (1)(c) so as to forbid or require something not forbidden or required by the terms of the condition when the person gave the undertaking. (3) The procurator fiscal may by notice rescind an undertaking given under section 19(2)(a) (whether or not the person who gave it is to be prosecuted). (4) An undertaking given under section 19(2)(a) expires at the end of the day on which the person who gave the undertaking is required by its terms to appear at a court, except that (a) if before then the procurator fiscal sends notice to the person under subsection (3), it expires at the end of the day on which the notice is sent, or (b) if the person fails to appear at a court as required by the terms of the undertaking and a warrant is granted on account of that failure, it expires at the end of the day on which the person is brought before a court having been arrested under the warrant. () Notice under subsection (1) or (3) must be effected in a manner by which citation may be effected under section 141 of the 199 Act. 22 Review of undertaking (1) A person who is subject to an undertaking containing a condition imposed under section (3)(b) may apply to the sheriff to have the condition reviewed. (2) Before disposing of an application under this section, the sheriff must give the procurator fiscal an opportunity to make representations. (3) If the sheriff is not satisfied that the condition is necessary and proportionate for the purpose for which it was imposed, the sheriff may modify the terms of the undertaking by (a) removing the condition, or (b) imposing an alternative condition that the sheriff considers to be necessary and proportionate for that purpose.

17 Criminal Justice (Scotland) Bill 11 Part 1 Arrest and custody Chapter 4 Police interview CHAPTER 4 POLICE INTERVIEW Rights of suspects 3 23 Information to be given before interview (1) Subsection (2) applies to a person who (a) is in police custody, or (b) is attending at a police station or other place voluntarily for the purpose of being interviewed by a constable. (2) Not more than one hour before a constable interviews the person about an offence which the constable has reasonable grounds to suspect the person of committing, the person must be informed (a) that the person is under no obligation to say anything other than to give the information specified in section 26(3), (b) about the right under section 24 to have a solicitor present during the interview, and (c) if the person is in police custody, about any right which the person has under Chapter. (3) A person need not be informed under subsection (2)(c) about a right to have intimation sent under either of the following sections if the person has exercised the right already (a) section, (b) section 3. (4) For the purpose of subsection (2), a constable is not to be regarded as interviewing a person about an offence merely by asking the person for the information specified in section 26(3). 24 Right to have solicitor present (1) Subsections (2) and (3) apply to a person who (a) is in police custody, or (b) is attending at a police station or other place voluntarily for the purpose of being interviewed by a constable. (2) The person has the right to have a solicitor present while being interviewed by a constable about an offence which the constable has reasonable grounds to suspect the person of committing. (3) Accordingly (a) unless the person consents to being interviewed without having a solicitor present, a constable must not begin to interview the person about the offence until the person s solicitor is present, and (b) the person s solicitor must not be denied access to the person at any time while a constable is interviewing the person about the offence.

18 12 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 4 Police interview (4) Despite subsection (3)(a) a constable may, in exceptional circumstances, proceed to interview the person without a solicitor being present if the constable is satisfied that it is necessary to interview the person without delay in the interests of (a) the investigation or the prevention of crime, or (b) the apprehension of offenders. () For the purposes of subsections (2) and (3), a constable is not to be regarded as interviewing a person about an offence merely by asking the person for the information specified in section 26(3). (6) Where a person consents to being interviewed without having a solicitor present, there must be recorded (a) the time at which the person consented, and (b) any reason given by the person at that time for waiving the right to have a solicitor present. 3 Consent to interview without solicitor (1) Subsections (2) and (3) apply for the purpose of section 24(3)(a). (2) A person may not consent to being interviewed without having a solicitor present if (a) the person is under 16 years of age, or (b) the person is 16 years of age or over and, owing to mental disorder, appears to a constable to be unable to (i) understand sufficiently what is happening, or (ii) communicate effectively with the police. (3) A person to whom this subsection applies (referred to in subsection () as person A ) may consent to being interviewed without having a solicitor present only with the agreement of a relevant person. (4) Subsection (3) applies to a person who is (a) 16 or 17 years of age, and (b) not precluded by subsection (2)(b) from consenting to being interviewed without having a solicitor present. () For the purpose of subsection (3), a relevant person means (a) if person A is in police custody, any person who is entitled to access to person A by virtue of section 32(2), (b) if person A is not in police custody, a person who is (i) at least 18 years of age, and (ii) reasonably named by person A. (6) In subsection (2)(b) (a) mental disorder has the meaning given in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 03, (b) the reference to the police is to any

19 Criminal Justice (Scotland) Bill 13 Part 1 Arrest and custody Chapter 4 Police interview (i) constable, or (ii) person appointed as a member of police staff under section 26(1) of the Police and Fire Reform (Scotland) Act 12. Person not officially accused 26 Questioning following arrest (1) Subsections (2) and (3) apply where (a) a person is in police custody in relation to an offence, and (b) the person has not been officially accused of committing the offence or an offence arising from the same circumstances as the offence. (2) A constable may put questions to the person in relation to the offence. (3) The person is under no obligation to answer any question, other than to give the following information (a) the person s name, (b) the person s address, (c) the person s date of birth, (d) the person s place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person s identity), and (e) the person s nationality. (4) Subsection (2) is without prejudice to any rule of law as regards the admissibility in evidence of any answer given. Person officially accused 3 27 Authorisation for questioning (1) The court may authorise a constable to question a person about an offence after the person has been officially accused of committing the offence. (2) The court may grant authorisation only if it is satisfied that allowing the person to be questioned about the offence is necessary in the interests of justice. (3) In deciding whether to grant authorisation, the court must take into account (a) the seriousness of the offence, (b) the extent to which the person could have been questioned earlier in relation to the information which the applicant believes may be elicited by the proposed questioning, (c) where the person could have been questioned earlier in relation to that information, whether it could reasonably have been foreseen at that time that the information might be important to proving or disproving that the person has committed an offence. (4) Where subsection () applies, the court must give the person an opportunity to make representations before deciding whether to grant authorisation. () This subsection applies where

20 14 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 4 Police interview 3 (a) a warrant has been granted to arrest the person in respect of the offence, or (b) the person has appeared before a court in relation to the offence. (6) Where granting authorisation, the court (a) must specify the period for which questioning is authorised, and (b) may specify such other conditions as the court considers necessary to ensure that allowing the proposed questioning is not unfair to the person. (7) A decision of the court (a) to grant or refuse authorisation, or (b) to specify, or not to specify, conditions under subsection (6)(b), is final. (8) In this section, the court means (a) where an indictment has been served on the person in respect of the High Court, a single judge of that court, (b) in any other case, the sheriff. 28 Authorisation: further provision (1) An application for authorisation may be made (a) where section 27() applies, by the prosecutor, or (b) in any other case, by a constable. (2) In subsection (1)(a), the prosecutor means (a) where an indictment has been served on the person in respect of the High Court, Crown Counsel, or (b) in any other case, the procurator fiscal. (3) Where an application for authorisation is made in writing (rather than orally) it must (a) be made in such form as may be prescribed by act of adjournal (or as nearly as may be in such form), and (b) state whether another application has been made for authorisation to question the person about the offence or an offence arising from the same circumstances as the offence. (4) Authorisation ceases to apply as soon as either (a) the period specified under section 27(6)(a) expires, or (b) the person s trial in respect of the offence, or an offence arising from the same circumstances as the offence, begins. () For the purpose of subsection (4)(b), a trial begins (a) in proceedings on indictment, when the jury is sworn, (b) in summary proceedings, when the first witness for the prosecution is sworn. (6) In this section authorisation means authorisation under section 27,

21 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 4 Police interview the offence means the offence referred to in section 27(1). 29 Arrest to facilitate questioning (1) On granting authorisation under section 27, the court may also grant a warrant for the person s arrest if it seems to the court expedient to do so. (2) The court must specify in a warrant granted under subsection (1) the maximum period for which the person may be detained under it. (3) The person s detention under a warrant granted under subsection (1) must end as soon as (a) the period of the person s detention under the warrant becomes equal to the maximum period specified under subsection (2), (b) the authorisation ceases to apply (see section 28(4)), or (c) in the opinion of the constable responsible for the investigation into the offence referred to in section 27(1), there are no longer reasonable grounds for suspecting that the person has committed (i) that offence, or (ii) an offence arising from the same circumstances as that offence. (4) For the purpose of subsection (3)(a), the period of the person s detention under the warrant begins when the person (a) is arrested at a police station, or (b) arrives at a police station, having been taken there in accordance with section 4. () For the avoidance of doubt (a) if the person is on bail when a warrant under subsection (1) is granted, the order admitting the person to bail is not impliedly recalled by the granting of the warrant, (b) if the person is on bail when arrested under a warrant granted under subsection (1) (i) despite being in custody by virtue of the warrant the person remains on bail for the purpose of section 24()(b) of the 199 Act, (ii) when the person s detention under the warrant ends, the bail order continues to apply as it did immediately before the person s arrest, (c) if the person is subject to an undertaking given under section 19(2)(a), the person remains subject to the undertaking despite (i) the granting of a warrant under subsection (1), (ii) the person s arrest and detention under it.

22 16 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter Rights of suspects in police custody CHAPTER RIGHTS OF SUSPECTS IN POLICE CUSTODY Intimation and access to another person Right to have intimation sent to other person (1) A person in police custody has the right to have intimation sent to another person of (a) the fact that the person is in custody, (b) the place where the person is in custody. (2) Intimation under subsection (1) must be sent (a) where a constable believes that the person in custody is under 16 years of age, regardless of whether the person requests that it be sent, (b) in any other case, if the person requests that it be sent. (3) The person to whom intimation is to be sent under subsection (1) is (a) where a constable believes that the person in custody is under 16 years of age, a parent of the person, (b) in any other case, an adult reasonably named by the person in custody. (4) Intimation under subsection (1) must be sent (a) as soon as reasonably practicable, or (b) if subsection () applies, with no more delay than is necessary. () This subsection applies where a constable considers some delay to be necessary in the interests of (a) the investigation or prevention of crime, or (b) the apprehension of offenders. (6) In this section and section 31 adult means person who is at least 18 years of age, parent includes guardian and any person who has the care of a person Right to have intimation sent: under 18s (1) This section applies where a constable believes that a person in police custody is under 18 years of age. (2) At the time of sending intimation to a person under section (1), that person must be asked to attend at the police station or other place where the person in custody is being held. (3) Subsection (4) applies where (a) it is not practicable or possible to contact, within a reasonable time, the person to whom intimation is to be sent by virtue of section (3), or (b) that person will not attend, within a reasonable time, at the police station or other place where the person in custody is being held. (4) Attempts to send intimation under section (1) must continue to be made until

23 Criminal Justice (Scotland) Bill 17 Part 1 Arrest and custody Chapter Rights of suspects in police custody (a) an appropriate person is contacted and agrees to attend, within a reasonable time, at the police station or other place where the person in custody is being held, or (b) if a constable believes that the person in custody is 16 or 17 years of age, the person requests that (for the time being) no further attempt to send intimation is made. () In subsection (4)(a), an appropriate person means (a) if a constable believes that the person in custody is under 16 years of age, a person the constable considers appropriate having regard to the views of the person in custody, (b) if a constable believes that the person in custody is 16 or 17 years of age, an adult who is named by the person in custody and to whom a constable is willing to send intimation without a delay by virtue of section (4)(b). (6) The reference in subsection (3)(a) to its not being possible to contact a person within a reasonable time includes the case where, by virtue of section (4)(b), a constable delays sending intimation to the person Right of under 18s to have access to other person (1) Access to a person in police custody who a constable believes is under 16 years of age must be permitted to (a) a parent of the person, (b) where a parent is not available, at least one person sent intimation under section in respect of the person in custody who is able to attend within a reasonable time. (2) Access to a person in police custody who a constable believes is 16 or 17 years of age must be permitted to at least one person sent intimation under section in respect of the person in custody where (a) the person sent intimation is able to attend within a reasonable time, and (b) the person in custody wishes to have access to the person sent intimation. (3) In exceptional circumstances, access under subsection (1) or (2) may be refused or restricted so far as the refusal or restriction is necessary (a) in the interests of (i) the investigation or prevention of crime, or (ii) the apprehension of offenders, or (b) for the well-being of the person in custody. (4) In this section, parent includes guardian and any person who has the care of a person. 33 Support for vulnerable persons (1) Subsection (2) applies where (a) a person is in police custody, Vulnerable persons

24 18 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter Rights of suspects in police custody (b) a constable believes that the person is 18 years of age or over, and (c) owing to mental disorder, the person appears to the constable to be unable to understand sufficiently what is happening or to communicate effectively with the police. (2) With a view to facilitating the provision of support of the sort mentioned in subsection (3) to the person as soon as reasonably practicable, the constable must ensure that intimation of the matters mentioned in subsection (4) is sent to a person who the constable considers is suitable to provide the support. (3) That is, support to (a) help the person in custody to understand what is happening, and (b) facilitate effective communication between the person and the police. (4) Those matters are (a) the place where the person is in custody, and (b) that support of the sort mentioned in subsection (3) is, in the view of the constable, required by the person. () In this section (a) mental disorder has the meaning given by section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 03, (b) the references to the police are to any (i) constable, or (ii) person appointed as a member of police staff under section 26(1) of the Police and Fire Reform (Scotland) Act Power to make further provision (1) The Scottish Ministers may by regulations amend (a) subsection (1)(c) of section 33, (b) subsection (3) of that section. (2) The Scottish Ministers may by regulations specify descriptions of persons who may for the purposes of subsection (2) of section 33 be considered suitable to provide support of the sort mentioned in subsection (3) of that section (including as to training, qualifications and experience). (3) Regulations under subsection (1) or (2) are subject to the affirmative procedure. Intimation and access to a solicitor 3 3 Right to have intimation sent to solicitor (1) A person who is in police custody has the right to have intimation sent to a solicitor of any or all of the following (a) the fact that the person is in custody, (b) the place where the person is in custody,

25 Criminal Justice (Scotland) Bill 19 Part 1 Arrest and custody Chapter 6 Police powers and duties (c) that the solicitor s professional assistance is required by the person, (d) if the person has been officially accused of an offence (i) whether the person is to be released from custody, and (ii) where the person is not to be released, the court before which the person is to be brought in accordance with section 18(2) and the date on which the person is to be brought before that court. (2) Where the person requests that intimation be sent under subsection (1), the intimation must be sent as soon as reasonably practicable. 36 Right to consultation with solicitor (1) A person who is in police custody has the right to have a private consultation with a solicitor at any time. (2) In exceptional circumstances, a constable may delay the person s exercise of the right under subsection (1) so far as it is necessary in the interests of (a) the investigation or the prevention of crime, or (b) the apprehension of offenders. (3) In subsection (1), consultation means consultation by such means as may be appropriate in the circumstances and includes (for example) consultation by means of telephone. CHAPTER 6 POLICE POWERS AND DUTIES Powers of police 37 Use of reasonable force A constable may use reasonable force (a) to effect an arrest, (b) when taking a person who is in police custody to any place. 38 Common law power of entry Nothing in this Part affects any rule of law concerning the powers of a constable to enter any premises for any purpose Common law power of search etc. (1) Nothing in this Part affects any rule of law by virtue of which a constable may exercise a power of the type described in subsection (2). (2) The type of power is a power that a constable may exercise in relation to a person by reason of the person s having been arrested and charged with an offence by a constable. (3) Powers of the type described in subsection (2) include the power to (a) search the person,

26 Criminal Justice (Scotland) Bill Part 1 Arrest and custody Chapter 7 Breach of liberation condition (b) seize any item in the person s possession, (c) place the person in an identification parade. 40 Power of search etc. on arrest (1) A constable may exercise in relation to a person to whom subsection (2) applies any power of the type described in section 39(2) which the constable would be able to exercise by virtue of a rule of law if the person had been charged with the relevant offence by a constable. (2) This subsection applies to a person who (a) is in police custody having been arrested without a warrant, and (b) has not, since being arrested, been charged with an offence by a constable. (3) In subsection (1), the relevant offence means the offence in connection with which the person is in police custody. Duties of police 41 Duty not to detain unnecessarily A constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. 42 Duty to consider child s best interests (1) Subsection (2) applies when a constable is deciding whether to (a) arrest a child, (b) hold a child in police custody, (c) interview a child about an offence which the constable has reasonable grounds to suspect the child of committing, or (d) charge a child with committing an offence. (2) In taking the decision, the constable must treat the need to safeguard and promote the well-being of the child as a primary consideration. (3) For the purposes of this section, a child is a person who is under 18 years of age. CHAPTER 7 BREACH OF LIBERATION CONDITION 3 43 Offence where condition breached (1) A person commits an offence if, without reasonable excuse, the person breaches a liberation condition by reason of (a) failing to comply with an investigative liberation condition, (b) failing to appear at court as required by the terms of an undertaking, or (c) failing to comply with the terms of an undertaking, other than the requirement to appear at court.

27 Criminal Justice (Scotland) Bill 21 Part 1 Arrest and custody Chapter 7 Breach of liberation condition 3 (2) Subsection (1) does not apply where (and to the extent that) a person breaches a liberation condition by reason of committing an offence (in which case see section 4). (3) It is competent to amend a complaint to include an additional charge of an offence under subsection (1) at any time before the trial of a person in summary proceedings for (a) the original offence, or (b) an offence arising from the same circumstances as the original offence. (4) In subsection (3), the original offence is the offence in connection with which (a) an investigative liberation condition was imposed, or (b) an undertaking was given. 44 Sentencing for section 43 offence (1) A person who commits an offence under section 43(1) is liable on summary conviction to (a) a fine not exceeding level 3 on the standard scale, or (b) imprisonment for a period (i) where conviction is in the justice of the peace court, not exceeding 60 days, (ii) where conviction is in the sheriff court, not exceeding 12 months. (2) A penalty under subsection (1) may be imposed in addition to any other penalty which it is competent for the court to impose, even if the total of penalties imposed exceeds the maximum penalty which it is competent to impose in respect of the original offence. (3) The reference in subsection (2) to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention (a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively, (b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence. (4) Subsection (3)(b) is subject to section 4A (restriction on consecutive sentences for released prisoners) of the 199 Act. () Subsection (6) applies where (a) a court finds a person guilty of an offence under section 43(1), or (b) a person pleads guilty to an offence under that section. (6) The court may remit the person for sentence in respect of the offence under section 43(1) to any court which is considering the original offence. (7) In subsections (2) and (6), the original offence is the offence in connection with which (a) the investigative liberation condition was imposed, or (b) the undertaking was given.

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